dissenting.
I vote to reverse the trial court’s Order dismissing plaintiff’s action for failure to state a claim upon which relief can be granted. I respectfully dissent.
I. Standard of Review
In reviewing the trial court’s grant of a Rule 12(b)(6) motion to dismiss, we must determine whether “as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim *94upon which relief can be granted under some legal theory.” Considine v. Compass Grp. USA, Inc., 145 N.C. App. 314, 316-17, 551 S.E.2d 179, 181 (citing Lynn v. Overlook Development, 328 N.C. 689, 692, 403 S.E.2d 469, 471 (1991)), aff'd, 254 N.C. 568, 557 S.E.2d 528 (2001); see also N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2003). The trial court’s dismissal is affirmed only if “ ‘it appears beyond doubt that the plaintiff could prove no set of facts in support of his claim which would entitle him to relief.’ ” Meyer v. Walls, 347 N.C. 97, 111-12, 489 S.E.2d 880, 888 (1997) (quoting Dixon v. Stuart, 85 N.C. App. 338, 340, 354 S.E.2d 757, 758 (1987)).
Dismissal of a complaint under Rule 12(b)(6) is proper when one of the following three conditions is satisfied: (1) when the complaint on its face reveals that no law supports plaintiff’s claim; (2) when the complaint on its face reveals the absence of fact sufficient to make a good claim; (3) when some fact disclosed in the complaint necessarily defeats plaintiff’s claim.
Jackson v. Bumgardner, 318 N.C. 172, 175, 347 S.E.2d 743, 745 (1986) (citing Oates v. JAG, Inc., 314 N.C. 276, 333 S.E.2d 222 (1985)).
II. Sufficiency of Complaint
Plaintiff’s action is governed by N.C. Gen. Stat. § 126-84, et seq., the Whistleblower Act. The Whistleblower Act protects State employees who report, among other things, illegal activity by a State agency or employee. N.C. Gen. Stat. § 126-84, et seq. (2003). Department heads and supervising authorities are prohibited from retaliating against employees who engage in protected activity. N.C. Gen. Stat. § 126-84; N.C. Gen. Stat. § 126-85 (2003). The necessary elements for a claim under the Whistleblower Act include: “(1) the plaintiff’s engagement in a ‘protected activity,’ (2) an ‘adverse employment action’ occurring subsequent to the ‘protected activity,’ and (3) the plaintiff’s engagement in the ‘protected activity’ was a ‘substantial or motivating factor’ in the ‘adverse employment action.’ ” Wells v. N.C. Dep’t. of Corr., 152 N.C. App. 307, 314, 567 S.E.2d 803, 809 (2002) (quoting Kennedy v. Guilford Tech. Community College, 115 N.C. App. 581, 584, 448 S.E.2d 280, 282 (1994) (quoting McCauley v. Greensboro City Bd. of Educ., 714 F. Supp. 146, 151 (M.D.N.C. 1987))).
Here, plaintiff’s complaint properly alleges each required element and that he engaged in “protected activity,” pursuant to N.C. Gen. Stat. § 126-84(a). Specifically, plaintiff’s complaint alleges: (1) he was *95a State employee and a Trooper with the North Carolina Division of State Highway Patrol; (2) all defendants were State employees who exercised supervisory authority over plaintiff pursuant to N.C. Gen. Stat. § 126-85; (3) plaintiffs initial statement, Statement I, was “truthful and complied with the instruction of [Sergeant] Combs;” (4) plaintiff, after seeking “the counsel and mentorship of another trooper,” approached Sergeant Combs “on his own volition” to inform him that there were “things he didn’t know about what had happened,” which resulted in plaintiffs subsequent preparation and submission of an amended statement.
Regarding the second element, plaintiffs complaint alleges that defendants terminated plaintiff following submission of his amended statement regarding the incident. In filing his first report, plaintiff literally complied with his supervisor’s request to “write what he saw in a statement” by filing his statement the next morning. Although plaintiff reluctantly filed Statement I one day after Sergeant Combs demanded the statement, the short delay does not indicate “misleading, untruthful [or] incomplete . . . written communications,” which were the reasons cited for plaintiff’s termination. The majority’s opinion does not identify any “misleading” or “untruthful” communication contained in plaintiff’s Statement I. State employees, and state patrolmen in particular, regularly and routinely file amendments or continuations to their initial reports.
The third element is supported by allegations that “Defendants discharged Plaintiff because Plaintiff reported to his superiors, both verbally and in writing, information in the Amended Statement that supports a contention that the Troopers violated State or federal law . . . and exercised gross abuse of authority in the apprehension and arrest of Owen Nichols.”
Plaintiff’s claim under the Whistleblower Act is further supported by allegations that: (1) “[his] sanction of dismissal for allegedly withholding information . . . was grossly inequitable in comparison with the treatment and/or sanctions received by other Troopers;” (2) “Defendants’ termination of plaintiff was pretextual in the need to protect the Department and Division from a potential civil law suit by Owen Nichols for the use of excessive force;” (3) “When Plaintiff submitted the Statement [I], Sergeant Combs handed Plaintiff a previously prepared Trooper Performance Record,” a disciplinary action; and (4) “Defendants essentially punished Plaintiff for reporting on Plaintiff’s own volition the truth, which truth was protected by N.C. Gen. Stat. § 126-84.”
*96These allegations, construed liberally and taken as true, are sufficient to support plaintiff’s claim that he engaged in “protected activity,” which became a “substantial or motivating factor in the adverse employment action.” Wells, 152 N.C. App. at 314, 567 S.E.2d at 809 (quotations omitted).
III. Disclosure of Facts to Defeat Plaintiff’s Claim
Plaintiff argues his complaint does not reveal any fact to defeat his claim. I agree. “When considering a 12(b)(6) motion to dismiss, the trial court need only look to the face of the complaint to determine whether it reveals an insurmountable bar to plaintiff’s recovery.” Locus v. Fayetteville State University, 102 N.C. App. 522, 527, 402 S.E.2d 862, 866 (1991) (citing Hawkins v. Webster, 78 N.C. App. 589, 337 S.E.2d 682 (1985)).
A. Truthfulness of the Report
The majority’s opinion concludes, “Plaintiff’s complaint stated that he knowingly filed an incomplete report and later filed a correction after conferring with Sergeant Montgomery.” Plaintiff’s complaint does not allege or reveal that “he knew the original report prepared and submitted by him was inaccurate,” as the majority’s opinion contends.
Taking plaintiff’s allegations as true, he was “truthful and complied with the instruction of [Sergeant] Combs . . . [and] strictly followed [Sergeant] Combs’[s] instructions to write what he ‘saw’ . . . .” (Emphasis supplied). Plaintiff “remained troubled about whether he should had [sic] also included Collins’ Statements [regarding how he had injured his hand] in the Statement [I] . . ..” On his .own accord, plaintiff later informed Sergeant Combs of Collins’s statements and amended his statement to include, at Sergeant Combs’s request, “everything he knows about the Incident.” Both statements completed by plaintiff properly conformed to the direction and request of his commanding- officer and were wholly true and accurate. Treating plaintiff’s allegations as true, Statement I included everything plaintiff “saw,” and the amended statement included everything he “knew.”
No allegation contained on the face of plaintiff’s complaint defeats his claim for relief. The majority’s opinion fails to identify specifically any allegation to defeat plaintiff’s complaint and errs in its holding to affirm the trial court’s Rule 12(b)(6) dismissal of plaintiff’s complaint on this basis.
*97B. Office of Administrative Hearings
Defendants contend and the majority’s opinion concludes plaintiffs claim with the Office of Administrative Hearings (“OAH”) bars the action at bar. I disagree.
Plaintiffs complaint admits he “did not exhaust all his potential administrative remedies,” but mentions no pending claim with the OAH. Defendants’ argument and assertion of other defenses may be appropriate for a summary judgment hearing under Rule 56, but are not to be considered in a motion to dismiss under Rule 12(b)(6). See Locus, 102 N.C. App. at 527, 402 S.E.2d at 865 (converting motion to dismiss into motion for summary judgment “where matters outside the pleadings are presented to and not excluded by the court....”).
Reliance by the majority’s opinion on Swain v. Elfland, 145 N.C. App. 383, 550 S.E.2d 530, cert. denied, 354 N.C. 228, 554 S.E.2d 832 (2001), is misplaced. Although this Court held that a plaintiff, under the Whistleblower Act, has two means of redress, we stopped short of concluding that a plaintiff must first exhaust all his administrative remedies before seeking relief in the superior court. Id. at 390, 550 S.E.2d at 535. As plaintiff’s complaint includes no allegation regarding a hearing conducted in the OAH, Swain does not apply. The majority’s opinion acknowledges plaintiff’s right to bring an action in the superior court is allowed pursuant to N.C. Gen. Stat. § 126-86 (2003).
IV. Conclusion
Neither the majority’s opinion nor defendants identify any fact or set of facts contained on the face of plaintiff’s complaint to defeat plaintiff’s Whistleblower claim. Upon review of “the face of the complaint,” plaintiff presents no fact to reveal an “insurmountable bar” to recovery. See Locus, 102 N.C. App. at 527, 402 S.E.2d at 866.
I vote to reverse the trial court’s judgment granting defendants’ Rule 12(b)(6) motion to dismiss. Upon defendants’ motion to dismiss for failure to state a claim upon which relief can be granted, the trial court must liberally treat plaintiff’s allegations as true. Plaintiff’s complaint sufficiently alleges a claim under the Whistleblower Act. I respectfully dissent.